A case pitting Billings County against owners of the Eberts ranch could be a landmark if it limits the county's ability to take private property for public use.

The Ebertses want to sell their ranch to North Dakota as a public preserve because of its scenic beauty and its historical ties to Theodore Roosevelt.

They are trying to prevent Billings County from building a road through their ranch and a low-water crossing on the Little Missouri river at the same time they are only a vote away from even owning the property.

The Senate voted to buy the 5,280-acre Eberts spread Thursday, the same day the Eberts family's road case with Billings County was heard by the North Dakota Supreme Court. The decision to buy the ranch must now clear the House.

The court case stems back to Billings County's attempt to get access to the ranch through a quick-take action in August.

The county says it needs a road to get across the Little Missouri River and create the only east-west crossing in the upper reaches of the Badlands. It said it has spent 20 years and $4 million to get a road across the Badlands, and all that's missing is a connecting link and low-water bridge.

The Ebertses got an injunction in district court to prevent the county from coming onto their land to survey for a road. The Supreme Court heard the county's appeal of that injunction last week.

On top of the contested quick-take - that lets counties take land for public use and resolve payment later - the county added a separate condemnation several weeks ago. Condemnations are essentially the same, only compensation to the landowner is settled first.

Billings County Commissioner Joe Kessel said the county hoped a condemnation would let them go in and survey a road and crossing site. However, the Supreme Court said the injunction prevents the county from going on the ranch to survey in a condemnation, too - until the case is resolved.

What's at stake is the county's right to use its quick-take authority on private land, a right that has never been challenged in court - until now. State law says county commissioners can exercise their own authority to take land if it's a public necessity.

The county argued that its authority is so broad that all that can be appealed is what it will pay the property owner.

The court justices asked whether Billings County thought it could use the same authority to build a road through the new Bully Pulpit Golf Course or the amphitheater, both expensive private facilities near Medora.

The Ebertses argue that the county didn't establish public necessity for taking their land before filing the quick-take action last summer. They said the county is just trying to interfere with the sale of the land, which at that time was being negotiated with federal agencies but is now a state deal.

Their attorney, Al Hardy, of Dickinson, said state law is very broad.

"If you take Billings County literally, there are really no boundaries or limits to taking anybody's property for any reason," Hardy said.

The question before the court will be whether the county's action meets the threshold of taking for public necessity.

Billings County Commissioner Jim Arthaud said he thinks the matter should be left in the county's hands to do what's best for the county.

He said the county started the condemnation, even though the quick-take action is in court, because "our view is now is the time to do it."

Arthaud said he didn't know how long it would take to get a crossing built if the court casts down the injunction. The crossing also will need approval from the U.S. Army Corps of Engineers.

The Eberts ranch acquisition bill approved by the Senate was amended to maintain existing or acquired transportation easements. Billings County supported the bill with that amendment.

(Reach reporter Lauren Donovan at 888-303-5511 or lauren@westriv.com.)